The “Third Rail” of Contraception


During the oral arguments in the HHS Mandate cases last week (March 23), lawyers for the religious nonprofits did not “push back” at all upon several of the female Justices’ comments that the government’s interest in getting free contraception to all women was “of course” important, or even compelling, respecting women’s freedom. Justice Ginsburg even stated outright that the evidence was clear that contraception reduces population-wide levels of unintended pregnancies and abortions.

Plaintiffs’ lawyers did not (at least outwardly) disagree, and I suspect that they are afraid of speaking about contraception.

WSFT’s amicus brief shows systematically, however, exactly how wrong Justice Ginsburg is. In a nutshell, in addition to the government submitting no serious or complete data on this point, easily available data shows that rates of unintended pregnancy, abortion and nonmarital births have all increased not decreased over the last several decades ESPECIALLY among populations where birth control is most free or easily available. The answer lies in how contraception (and abortion) change the whole set of expectations and decisions (the market) for dating, sex and marriage. Women do not feel free not to have sex if they want a relationship.

So while there is good news in the Supreme Court’s latest move, March 29, to ask the two sides of the case how to decrease the religious institutions’ involvement with the Mandate…there is also bad news. The Court (and even the religious institutions’ attorneys) do not seem to want touch the “third rail” of contraception, and are content rather to accept the usual drivel that anything that allows women to have sex without fear of children = freedom.  No matter whether or not a person has a religious belief about contraception, it is troubling that there is this much fear about raising one’s hand to say “it’s not what it’s cracked up to be!”

We have a lot of work to do.

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